When Cartels Unravel, Judicial Clerkship Market Edition

Are the Wild West days of federal clerk hiring back? That’s what some law school administrators and judges fear. They worry that the voluntary system whereby federal judges wait until September of the 3L year to hire clerks is teetering. Judges are choosing clerks earlier in the year and are being inundated with applications as the legal job market narrows. And a trend toward hiring the already graduated means fewer positions are available for fresh law graduates.

There is a lot of support for “The Plan” in the legal profession, and amongst judges. Well, for the latter, at least there is a lot of apparent support for it. There is also, like most cartels, a lot of competition. Hills’ comment is characteristic of a view often heard within law schools on the clerkship market:

I’m not sure how to fix it, but “it” (the clerkship-hiring-“process”) seems a mess to me. Although, as a general matter, I welcomed the success of “the Plan” in moving the clerk-hiring process, and decision, until after the second year (or, more specifically, until after a candidate has at least two years’ worth of grades), the situation now seems to be the worst of all worlds. There is, as the piece reports, a lot of defection from the Plan; schools are not quite sure how to respond; and the fact that the downturn has recent (and not so recent) graduates applying “off-plan” for clerkships puts even greater stress on those who would like to comply with its requirements. Add to the mix the facts that state judges and courts are on entirely different schedules and systems, and that some (but not all) judges employ the OSCAR system . . . phew. A mess.

So, let’s harness the Power of Prawfs and . . . clean it up. Suggestions?

Maybe its a mess. But markets are sometimes messy. Wonderfully messy. Chaotic even: Plenty of buyers and plenty of sellers fighting over scarce resources, signaling of various sorts of valuable and not-so-valuable information, bluffing, strategy, some sharp-elbow tactics, and competition across a number of dimensions. Messy? You bet. But “fair and orderly” codes of competition do not generally increase social welfare. I doubt this is an exception. So maybe the messiness of these markets is a feature rather than a bug. This is a hard message to sell in markets related to legal education or lawyering — where restrictions on competition are frequent.

So here is my suggestion: let’s go laissez-faire on the clerkship market.

Let applicants apply. Let judges hire. Let competition ensue. It will be messy. Sometimes even ugly. There will be some winners and losers. It will be chaotic. And almost certainly disorderly. But thank goodness for that. And perhaps in the world of increasing sources of competition for lawyers, including many coming from outside the hallowed halls of American law schools, it wouldn’t be a bad message to our students and future lawyers to — to put in bluntly — get used to it.

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I agree. The way the “plan” works in practice is actually probably more arbitrary than the way off-plan hiring works. Here’s how it works. There’s a particular day where they’re allowed to interview you for the first time. On that day, judges typically select most of their clerks within the first few hours, so the key is to get an interview with your favored judge as early in the morning as possible.

But the process for doing that is really screwy. There’s an earlier day when they are allowed to call you for the first time, to set up interviews. You let all your calls go to voicemail, and then you make snap decisions about whether to call back instantly or not. If you call back quickly, you have a better chance of getting an early interview. But what if a “better” judge calls five minutes later, and you are unable to schedule an interview because you’ve already committed yourself to the first judge? This whole thing means that who you clerk with is determined in part by five-minute differences between when one judge calls and when another one calls. Rational?

By contrast, here’s what Kozinski used to do. He had some professors at each of the top law schools, and he’d call them up to ask about their top students. The profs would send them resumes, and, if you met Kozinski’s stringent criteria, this could lead to an interview. He also makes the rounds at law review banquets, hobnobbing with the editors–I assume he gets clerks from these functions too. Frankly, this seems like a much better process.